PYARE LAL Vs. STATE

JUDGEMENT

(1.) The petitioner Pearey Lal was tried along with another person Madan Lal before the Judicial Magistrate 1st Class, Delhi, for an offence under section 16 read with section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). The learned Magistrate acquitted both these persons. One of the grounds on which they were acquitted was that they could not be tried together. Against this order of acquittal, the Municipal Corporation of Delhi filed an appeal in this Court and by its judgment dated 7th May, 1973 in Cr. A. No. 215/67, this Court, while confirming the acquittal of Madan Lal, however, set aside the acquittal of the petitioner herein and directed that his case should be sent to the Chief ? Judicial Magistrate for making it over to a Magistrate of competent jurisdiction for disposal in accordance with law. The acquittal of the petitioner was set aside on the ground that the joint trial of Pearey Lal with Madan Lal was quite proper. In pursuance of this order of this Court, the petitioner's case has been made over to Shri Shiv Charan, Judicial Magistrate, 1st Class, Delhi, for disposal in accordance with law and the learned Magistrate has commenced the proceedings in the case by framing a charge against the petitioner under sections 16/7 of the Act. Against the order framing a charge, the petitioner filed a revision petition in the Court of Sessions and contended firstly that the order of this Court setting aside the acquittal of the petitioner and directing that his case should be disposed of afresh in accordance with law did not justify the framing of the charge and that, on the other hand, the learned Magistrate was bound to discharge the petitioner, it was also contended in the alternative that in any case the learned Magistrate acted illegally in continuing the proceedings against the petitioner from the stage of framing the charge and that the learned Magistrate ought to have commenced the proceedings de novo by examining the prosecution witnesses afresh and then considered whether such evidence justified the framing of a charge. The learned Additional Sessions Judge did 'not accept the contention of the petitioner that he was entitled to a discharge straight away, but agreed with his alternative contention and he has made reference to this Court with a recommendation that the charge framed by the learned Magistrate be quashed and that he be directed to start the inquiry against the petitioner afresh.

(2.) Mr. Gulshan Rai, learned Counsel for the petitioner, has reiterated both the contentions before me which had been urged before the learned Additional Sessions Judge. In support of his first contention that the order of this Court dated 7.5,1973 did not prohibit the learned Magistrate from discharging the petitioner without faking any further proceedings against him, tie referred to the provisions of section 423 Cr. P.C. which deal with the powers of the appellate Court in disposing of an appeal either against acquittal or against conviction. I do not find anything in these provisions to support this contention of the learned Counsel. This court had accepted the appeal filed by tie Corporation against the acquittal of the petitioner and set aside his acquittal and directed that his case should be disposed of in accordance with law. This is a clear direction that the petitioner should be tried afresh. In the face of this order of this Court, the learned Magistrate could not possibly have passed an order of discharge in favour of the petitioner without recording any evidence. So far as the second contention is concerned,. the order of this Court is not quite clear as to the stage from which the proceedings against the petitioner have to be commenced and in the absence of a clear direction to the effect that the proceedings should commence from the stage of charge, the proper course for the learned Magistrate was to have commenced the proceedings from the beginning, i.e., from the examination of the witnesses prior to the charge. Accepting the recommendation of the learned Additional Sessions Judge, the order of the learned Magistrate framing the charge is set aside, and the learned Magistrate is directed to commence the proceedings from the beginning as indicated above. To this extent, the petition is allowed. Petition allowed.